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Boehner’s Feckless Plan to Sue Obama

June 25th, 2014 - 7:41 am

I wrote about the GOP strategy to nowhere in Faithless Execution:

Many Obama critics look hopefully to the 2014 midterm elections, calculating that a Republican landslide will put the GOP in control of both houses of Congress, which will purportedly derail Obama’s onslaught and end the constitutional crisis. This is wishful thinking. Even if we assume for argument’s sake that Republicans will have a big electoral victory in the fall, there would be little prospect of stopping the president.

Right now, Republicans control the House of Representatives, in which the Constitution vests primacy over taxing and spending. With a 45 seats in the Senate, where minorities enjoy power they do not have in the House, Republicans also have the votes, right now, to stop new Obama initiatives and to support the House were the latter to stop financing the president’s excesses. Yet, cowed by the Obama-friendly media, they have offered nothing but token resistance. Republicans are paralyzed at the very thought of using the power of the purse. The lone time House conservatives did so – in attempting to defund or delay the implementation of Obamacare in 2013 – they were savaged by Beltway GOP leadership.

I do not see any of this changing after the midterm elections. Even if Republicans win, the same Republican leaders will still be running the show. Moreover, Republicans are not going to come close to winning numbers that would enable them to override Obama vetoes. As a practical matter, that means the president will not need to veto many bills – unlike Republicans, disciplined Democrats would stick together in the Senate and coordinate closely with House progressives to kill any legislation aimed at rolling back Obama’s agenda. Thus, if past is prologue, Republicans will not even try. They will shrug and tell us fighting is pointless.

Perhaps more significantly, American presidents have enormous power over the conduct of foreign affairs and over the direction of the sprawling executive bureaucracy. If Congress becomes more of a dead-end for Obama than it is now, he will simply redouble his determination to rule by international agreements and executive orders – to be imposed on Americans by the administrative agencies that run the country day-to-day, and by the federal courts whose benches the president has been filling with hundreds of like-minded progressives since 2009.

The Constitution provides two avenues for reining in presidential lawlessness: Congress’s power of the purse and Congress’s authority to impeach the president. They are extraordinarily powerful remedies … but they are the only two available. Some lawmakers appear to think there is a third: Unwilling or unable to persuade their colleagues to use the constitutional powers available to the legislature, they hope to have the courts do the work for them – and to look, in the process of filing ballyhooed lawsuits against the administration, like they are mounting real resistance. It is, however, a feeble strategy. [See here and here.]

It is not the purpose of the judiciary to resolve national controversies. The federal courts were created as a subsection of government to remedy individual injuries, and they were given no power to enforce their judgments. That, indeed, is why Alexander Hamilton [in The Federalist, No. 78] anticipated that the judiciary would be the “least dangerous” branch: Controlling neither sword nor purse, it would be “least in a capacity to annoy or injure” the “political rights of the Constitution.” In fact, the law of “standing,” which addresses what grievances litigants may bring before courts, teaches that the more a controversy affects the body politic rather than the individual citizen, the less appropriate it is for judicial resolution. It is for just such controversies that we have political rights.

American jurisprudence counsels the judiciary to stay out of “political questions” – disputes between the two political branches over the extent of their competing authorities. Most judges will not give such suits the time of day.

Even if some unexpectedly do, litigation takes years to resolve. When it finally ends, we are reminded that courts have no power to enforce their own orders. Indeed, the Obama administration is already scoffing at judicial rulings that, for example, stripped the federal government’s power (under the 1965 Voting Rights Act) to “pre-clear” state election laws (such as new “Voter ID” provisions to uphold the integrity of elections); and that invalidated the president’s “recess” appointments – when Congress was not in recess – to the National Labor Relations Board. [See here and here.] When a federal judge in New Orleans ruled that the administration’s moratorium on deep-water drilling following the BP oil spill was illegal, the administration simply stopped issuing drilling permits, continuing the lawlessness by other means. [See here and here.]

In the unlikely event judges presume to rule against the president, they must depend on his executive branch subordinates to enforce their directives. Good luck with that.

If the Congress is unwilling to use its command over the treasury to coerce the president into heeding the limits of his power, impeachment is the only other alternative to the current Congress’s obviously preferred course of abdication. If you won’t defund malfeasance, you have to remove it … or accept it. There is no other course. Plus, as we shall see, the Framers saw impeachment as the appropriate response to presidential corruption, lawlessness, and infidelity to the Constitution. It is the designed tonic for faithless execution.

Yesterday in National Review Online, I argued that the House of Representatives should commence impeachment proceedings against any IRS or other executive branch officials who have been involved in either the revenue agency’s blatantly unconstitutional harassment of taxpayers over their political beliefs or the executive branch’s willful obstruction of Congress’s investigation of the scandal. As I’ve acknowledged in Faithless Execution, it is reasonable restraint on the GOP’s part to resist filing impeachment articles against a lawless president when there is insufficient public support for his removal from power. There is no excuse, however, for failure to take action against corrupt or incompetent subordinate executive officials, especially those at a deeply unpopular agency that Democrats would dread being put in the position of defending.

That would be meaningful action that the president’s opposition could take today. For GOP congressional leadership to try to sue the president in lieu of Congress’s real constitutional remedies would be a feint of action that would be revealed as meaningless a few months or years from now.

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Top Rated Comments   
Cowards, every one of them. They know full well they have multiple grounds to impeach, but they're too effing weak to do it. I'm ashamed of them all.
17 weeks ago
17 weeks ago Link To Comment
Boehner is a joke. The Republican controlled House is a joke. The courts are a joke. Issa's continuing inestigative hearings are a joke. Truth is no one has the guts or standing to stop BO. And he knows it.
17 weeks ago
17 weeks ago Link To Comment
The Declaration of Independence has enough words to end this awful era in American political history:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government ...
17 weeks ago
17 weeks ago Link To Comment
All Comments   (49)
All Comments   (49)
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Boehner's job is to abort any opposition to Obama inside the GOP. Notice I didn't say he wants to stop TALK of opposing Obama.

Google John Boehner and son-in-law
17 weeks ago
17 weeks ago Link To Comment
BEING LEGALLY CORRECT IS NOT A STRATEGY
Everything you say seems right: The courts will not get involved in what should be an impeachment proceeding. However, Boehner knows exactly who he's dealing with: The first Black President. The Supreme Court twisted itself into a pretzel to give legal justification to Obamacare. Why? It didn't want to reject the signature legislation of the first Black President. Similarly, Boehner doesn't want the GOP to be impugned by impeaching the first Black President. And, besides, impeachment is a loser in a Senate trial. What to do? Be cautious. File a lawsuit that's also a loser with the hope that the Supreme Court justices, while rejecting the lawsuit, give opinions that support impeachment. This would give validity -- as well as press to the issues -- that Boehner knows he needs to go forward with impeachment. Yes, it's not pretty. It's called 'Politics'. Plus, given today's 9-0 slap down, there's always the chance the Court would slap Obama down further.
17 weeks ago
17 weeks ago Link To Comment
Do they have a clue angry the conservative base is at them after they have spent 23 million to defeat that base - and that the have now proven they are just as eager as the media to paint them as racist, dumb, extremists.
17 weeks ago
17 weeks ago Link To Comment
then what dol you suggest we do Mr. McCarthy? I am not crazy about Feckless Boehner, and this effort looks more like symbolism over substance but we are driven to a point of despiration. Suggest a route and help us take it!
17 weeks ago
17 weeks ago Link To Comment
Ah well. The Speaker, John Boehner, the elected spokesperson for the "Republicans"of the House.

What fun. A"debate". Just think of all that TV and press attention. Finally stardom.

To debate the lawlessness of BH Obama as President. The same BH Obama who has told the world that HE need not concern himself with laws as HE can always sign an Executive Order to get what HE Wants.

BH Obama who gives the Congress and Judiciary the finger at every turn since first acceding to "The Office of President".

Who learned the meaining of craven during his tenure as US Senator while still admitting his birthplace as Kenya, In Africa.

Before SEAILNG unspecified and undesignated documents under Executive Order from public review. Review by that American Public in whose name and trust he acts.

Lawlessness. What's that?
17 weeks ago
17 weeks ago Link To Comment
Who exactly does McCarthy expect them to impeach? The current Commissioner, Koskinen, who wasn't there when this stuff happened? Yes, he misled Congress but claims he didn't know at the time.

If McCarthy thinks that would be effective, I'll have whatever he's drinking.

And as far as the "power of the purse" goes, without a budget - which Reid will not allow this year - we are reduced to acquiescing to a continuing resolution or shutting down the government.

Every single time we have had a government shutdown, going back to Reagan, Republicans are blamed and it hurts our standing with voters. "Making a point" is not so attractive when the cost is strengthening the Democrats' hold on power.

And to those who won't vote GOP because they don't do exactly what you hope: GROW UP. Your childish petulance could leave Reid in control of the Senate. If nothing else, that means possible new SCOTUS justices like Sotomayor and Kagan, and at least 200 other federal judges to lifetime appointments.

Those judges will be affecting your grandchildren's lives, and their children's. And it will be YOUR fault, because your precious feelings are hurt.

Shame on all of you.
17 weeks ago
17 weeks ago Link To Comment
If Boehner had any brains (and the balls to go with them) he'd start passing budgets that defund the worst part of this administration. Take away Michele's vacation money for starters - THAT would get some attention. Defund the IRS - EPA - DOJ - DOE ---- and Education for good measure. If they have no money to function they can't keep screwing with us.

Sadly Boehner has neither the balls to act - or the brains to have some plan of attack if he did. Asking the courts to do what he and his colleagues won't is a sure sign of a chickensh!t.

17 weeks ago
17 weeks ago Link To Comment
No can do with a Dem Senate ... would simply set up the GOP to get blamed again and again for government shutdowns that nobody likes. Sort of akin to becoming a "cutter" - a typically teen female who inflicts cuts on herself out of depression and perhaps also to get negative attention. Not very productive means of achieving anything.

The lawsuit is the right thing to do, not just for dealing with Obama now, but for preserving the proper checks and balances in our constitution.

As for defunding programs and agencies, that becomes a somewhat viable approach only if the GOP wins the Senate, which seems rather likely. Obama will still veto every such bill however, and the probability that the GOP will have enough votes in the Senate to override a veto (67) is nil. So really, there's no practical near term solution to Obama's overreach.
17 weeks ago
17 weeks ago Link To Comment
The GOP had House Senate and White House and they gave us Medicare Part D.

40-55% of the voters that claim to be on our side will make any excuse for inaction. Mostly they are more worried that our mortal enemies might say bad things about us than they are that we are headed over a cliff. They claim to be willing to support responsible action, but then they give a veto to the liberal media over that action.

"We can't replace Boehner, he's not the cause for all of our problems."
"we can't hold the budget hostage because the press will say mean things."
"we can't build a border fence because Mexicans won't like us."
"we can't jail bankers because that would scare the markets."

Keep making excuses for inaction and you guarantee this country erupts into violence. Once vast portions of the country understand politics will never fix a serious problem the violence will start. And when that happens the passive Mayberry types will be desperately asking "why didn't someone do something before all this happened?"
17 weeks ago
17 weeks ago Link To Comment
When I heard Boehner was going to do this today, I told my husband, that I hope the court throws Boehner out, and tells him to do his job, or resign.

I will not be voting in November. I will not vote for my GOP rep. in VA., because I won't vote for anyone who will put John Boehner back in as speaker. I would vote if I was lucky enough to live in Dave Brat's district, but I don't.

They're doing nothing to stop him, so there's no point in voting for them. After what they did to Chris McDaniel in MS., they showed they are leftists at heart. I have no use for them. I hope we can solve this in the future, or through an Article 5, Convention of the States. That's if the country isn't destroyed by the left in both parties or Islamists before then.

John Boehner's a disgrace. He has no business being in a leadership position. It's no wonder Congress has a 7% approval. Ugh, I can't stand them.
17 weeks ago
17 weeks ago Link To Comment
John Boehner and House GOP members had exactly zero to do with the MS Senate runoff - that was a fair contest closely run, and you're just POd cause your guy lost ... get over it.
17 weeks ago
17 weeks ago Link To Comment
What is fair about tarring your opponent as racist on radio ads, or as a liberal when he is anything but?
17 weeks ago
17 weeks ago Link To Comment
Civil society precedes the state, both morally and historically. Society creates order and grants the state legitimacy. If a ruler seeks absolute power, if he acts both as judge and participant in disputes, he puts himself in a state of war with his subjects and we have the right and the duty to kill such rulers and their servants. (John Locke)
17 weeks ago
17 weeks ago Link To Comment
"Obviously, Republican leadership does not see its “other options” as including the exercise of powers the Constitution gives Congress to stop executive lawlessness in its tracks, namely, cutting off the executive branch’s funding..."

How exactly does that work? That civics lesson was a long time ago for me but I don't recall that the House has the unilateral ability to turn off the spigot.
17 weeks ago
17 weeks ago Link To Comment
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